August l-9, 1955 

Hon. J. Earl Rudder Opinion No. s-167 

Commissioner 

General Land Office Re : Effect of the amendments to 

Austin, Texas the Veterans’ Land Act as 

passed by the Fifty-fourth 

Legislature on the authority 

of the Commissioner of the 

General Land Office to admlnister the Veterans’ Land 

Dear Commissioner Rudder: Program. 

Your letter requesting an opinion of this office 

stated as follows: 

“The recent 54th Legislature amended and 

greatly strengthened the Veterans’ Land Act 

when it passed H.B+ 341. The amendments place 

certain requirements and duties upon the sellers and the appraisers of the land, provide 

penalties for a violation of the Act, and make 

certain other changes affecting the administration of the Veterans’ Land Program. 

“Under Article 5421m, the Veterans’ Land 

Act, the administrative details of the Veterans’ 

Land Program are primarily the duty of the 

General Land Office and its employees, Because 

of this, it has been the established practice 

of the Veterans’ Land Board almost from its inception that the Commissioner of the General 

Land Office the Chairman of the Board, shall 

have the au t hority to administer and supervise 

the functioning of the Program. In fact, we can 

find no indication that the Board as a whole has 

acted on the administrative details of the Pro@;- 

ram sinae a very early date, but has acted only 

on matters of policy and on those items on which 

the Constitution and Statute require full Board 

action. 

“As the amendments to the Veterans’ Land 

Act go into effect September 6, 1955, we would 
Hon. J. Earl Rudder, page 2 (S-167) 

like an opinion from your office as to 

whether these amendments will make it 

necessary to change this established 

practice 

I 

or may the Commissioner of the 

General and Office still be vested with 

the authority for administering the Veterans' Land Program?" 

The Veterans' Land Board and Veteransl~Land Fund 

were created by the provisions of Section 49b 

F. 

Article III 

of the Texas Constitution, 

ber '7, 1946. 

adopted at an elec ion on NovemThe first legislative enabling act passed in 

1949; It was amended in 195'1, 1953, and just recently in 

195‘5, and is codified in the statutes as Article %21m. The 

purpose, of the Veterans' Land Program is to provide a method 

by which Texas veterans of military service may purchase 

land from the State at a low rate of interest, with payments 

spread over a long period of time. 

The constitutional duties imposed upon the Board 

are to issue bonds, and to expend the Veterans' Land Fund, 

which is created by the issuance of these bonds, for the 

purpose of purchasing,land. Sec. 49b, Art. III, Tex.Const. 

Article 5421m requires an official resolution by the Board 

in only two general situations which are matters relating 

to the issuance of the bonds (&ecs. 3 and 41, and in matters 

dealing with forfeiture when the veteran purchaser defaults 

in his payments. (Sec. 19). All other references in the 

Act to "the-Board" relate to procedural and administrative 

details. The amendments passed by the recent 54th Legislature do not add to the requirements for formal action by the 

Board. The substance of the amendments may be handled by 

rules and regulations, or in an administrative capacity. 

Section 21 of Article !?+2lm empowers the Board to 

make and promulgate such rules and regulations as may be 

necessary for the proper administration of the Veterans' Land 

Act; thus, the Board also acts on matters of policy so as to 

provide for ,the efficient administration of the Act. 

The first Board meeting was in the General Land 

Office on June 13 1949, with Honorable Beauford Jester,. 

Governor, Honorable Price Daniel, Attorney General, and Bascom 

Giles,,Commissioner of the General Land Office, present. Commissioner Giles was elected as Chairman, and he named his Chief 

Clerk, Mr. Alvis Vandygriff, as Executive Secretary of the 

Board, which actlon was approved by a majority of the~Board. 

In the following months the Board adopted a resolution which 
Hon. J. Earl Rudder, page 3 (S-167) 

designated the Chief Clerk of the General Land Office to act 

as Chairman of the Veterans’ Land Board in the absence of 

the Chairman, so that the functions of the Board could go forward without interruption. It is significant that neither 

of the other members was selected Chairmen in the Commissioner’s absence; the chairmanship was left in the General Land 

~OffiCfJ. From its very inception, therefore the Board recognized that the Veterans * Land Program is pr ! marily a function 

of the General Land Office, and throughout its history the 

Board has acted purely as a policy-making body with the admini,;;,;;ion of the Program being conducted by the Land Commis- 

. 

Such departmental construction was based upon the 

fact that Article 542lm reflected a legislative intent that 

the Land Commissioner should play a dominant role in the operation of the Program. Section .25 of the Act provides that 

the Executive Secretary and Assistant Executive Secretary are 

to be nominated by the Commissioner of the General Land Office 

and approved by the Board. This section further provides that 

all other employees of the Veterans’ Land Board are to be selected by the Commissioner, and by him alone. The Act further 

states that all employees %hall be deemed to be the employees 

of the General Land Office” and civil and criminal laws reguIating the conduct and rela t ions of the employees of the General 

Land Office apply in every manner to the employees of the Board; 

all documents and papers pertaining to the Veterans’ Land Program are required to be kept In the General Land Office. Penal 

provisions apply to documents of the Veterans’ Land Board in 

the same manner as to documents of the General Land Office. 

An examination of the Departmental Appropriation Bill (Acts 

1953, Ch. 81, pp. 240-243; H.B. 140, 54th Leg.), reveals that 

the appropriation for the Veterans’ Land Board is under the 

broad heading of the “General Land Office,” and its sub-total 

is added into an item called “Grand Total, General Land Office.” 

From these facts there is a clear indication by the Legislature that the Program is to be primarily a General Land Office 

function. 

Thus, from 1949 until December of 195’4, as pointed 

out in the request, it was the established practice of the 

Veterans’ Land Board that the Commissioner of the General Land 

Office was authorized to administer the administrative details 

and functions of the Veterans’ Land Act. Then, on February 

7 1955, following the resignation of the former Land Commiss 1 oner and the appointment of the Honorable J. Earl Rudder as 

his successor, the Veterans t Land Board passed a resolution 

under its rule-making authority which again placed the responsibility for the operation and functioning of the Program 
Hon. J. Earl Rudder, page 4 (s-167) 

upon the Commissioner of the General Land Off ice. Matters 

of policy change, and those const itutfonal and statutory 

‘functions requiring full Board action were excepted from 

the authority of the Commissioner of E he Gener,al Land Office 

and retained by the ,Board. 

We believe that this was a valid authorization for 

the, following reasons: 

$21m, 

(1) ,From the language and provisions of Article 

it is apparent that it was the original intent of the 

Legislature that the Veterans 1 Land Program was one which 

could be best administered by the General Land Office; 

(2) The~Legislature was on notice of the departmental construction placed on the Act by the Veterans’ Land. 

Board, and the Land Commissioner 

was carrying out the administra E* 

and that the Commissioner 

lve details of then Program. 

The Leg,islature amended the statute in 1951, 1953, and again 

in 1955, but did not change the general method of operating 

the Program. In fact, in 1951 the Legislature validated all 

act,ions theretofore taken by the Board, which would include 

authorizing the Commissioner to administer the Program; and 

in 1955 the Legislature refused to accept amendments to the 

Act which w~ould have prevented the Board from au-thorizing 

the Commissioner to administer the reprogram; 

(3) Those matters which have been delegated to 

the Commissioner are ministerial and adminfstrative in nature. 

It is believed that the Legislature originally intended the Veterans’ Land Program to be administered by the 

Commissioner of the General Land Office for the‘reasons, as 

pointed out above, that the Commissioner was authorized to 

nominate the Executive Secretary and Assistant Executive Secretary of the Board; he, and he alone 

and fire all other employees who migh z 

was authorized to hire 

work on Veterans’ Land 

matters; these employees were designated by the Legislature 

as employees of the General Land Office, subject to the same 

civil and criminal laws regulating the conduct and relations 

of the employees of the General Land Offfce; all the papers, 

records, and archives of the Board were required to be deposited and .kept in’the General Land Office; and, finally the 

appropriation for the Veterans’~ Land Board was include A,~ in the 

appropriation for the General Land Office. 

As point,ed out above, the only constitutional duties 

specifically imposed upon the Veterans’ Land Board are to issue bonds and to expend the Veterans 1 ‘Land Fund created by the 
Hon. J. Earl Rudder; page 5 (s-167) 

issuance of these bonds for the purpose of purchasing land 

;;tF;nsold to veterans. Art. III Sec. 49b, Texas Consti- 

. The Veterans’ Land Act c&t. 5421m, V.C.S.), requires a resolution by the Board only for the issuance of 

bonds (Sets. 3 and 41, and in matters dealing with forfeiture (Sec. 19). Inno other instance does the Act, including 

the new amendments, 

action. 

spell out a requirement for formal Board 

This gives rise to the well lmown legal doctrine 

of “expressio unius est exti1usi.o alterius” (the expression 

of one thing is the exclusion of the other) to the effect 

that as speoific resolutions are required in these limited 

Instances, formal Board action is therefore not required in 

any other instance. 

In this respect the statute under question differs 

very materially from Article 5421c-3 

,lishe,s and sets forth the duties of c 

V.C.S., which estabhe School Land Board, 

composed of the same members as the Veterans’ Land Board. 

Section 4 of that statute specifically states that “the duties of the School Land Board shall be to set all dates for 

the leasing and the sale of surveyed lands, and to determine 

prices at which any land whether surveyed or unsurveyed, 

shall be leased or sold, and to perform any other duties that 

may be imposed upon them by law. . .“j Section 6 of that 

statute further provides that “the School Land Board shall 

keep a record of its proceedings to be called its Minutes 

which shall include a docket on which the secretary shall enter all matters to be considered by the Board. . .‘I; Section 

8 specifically requires that “the Minutes shall show the 

fact of acceptance of a bid or the rejection of a bid and the 

approval of the Minutes will constitute the approval of the 

act of acceptance or the act of refusal. . .‘I; Section 10 

provides that “all awards or leases shall be issued by the 

Commissioner of the General Land Office in accordance with the 

Minutes as approved by the School Land Board”; Section 11 requires that “it shall be the duty of the School Land Board to 

advise the Commissioner in all matters submitted to it for 

SUC: purpose” j and Section 13 gives the authority to the 

School Land Board to accept or refuse any and all bids. Section 14 provides that all functions, powers, rights, and duties that were vested in the old Board of Mineral Development 

are transferred to and vested in the School Land Board. The 

statute creating the Board of Mineral Development provided 

that no business should be “transacted by the Board except at 

a meeting of such Board attended by two or more members, of 

which meeting notice to all other members shall have been given 

in writing. . ., and all orders or contracts made or entered 

into by said Board shall only be authorized at such a meettig. 

. . .I1 (Art. 5421c, Sec. 9). The Veterans’ Land Board statute, 
Hon. J. Earl Rudder, page 6 (s-167) 

before amendment by the %th Legislature,, did not even requirethat minutes be kept of meetings of the Board. 

Both the statute establishing the School Land, 

Board and the statute creating the Veterans’ Land Board authorize these Boards to meet on the first and third Tuesdays of each month. Perhaps it is because of this fact that 

some confusion has arisen as to whether the Veterans’ Land 

Board ever actually met and transacted any business. From 

a reading of the School Land Board minutes and from the testimony given by various state officials before investigating committees, It is apparent that the members went to the 

meetings of the School Land Board and conducted School Land 

Board business. They were therefore available on those 

days to discuss matters of Veterans’ Land Board policy, and 

to take action in those instances in which the statute required them to do so. On numerous occasions they died discuss and transact business relating to the Veterans’ Land 

Board. However, it is seen from the various affidavits 

filed with the Veterans 1 Land Board that the members, although they were present and on numerous occasions did act 

on matters of policy never did take any action on then admin@trative and min I sterial details of the Program. This 

was the responsibility of the Commissioner and the Board 

proper did not act on these matters. The affidavits do not 

state that there was never a meeting of the Veterans’ Land 

Board, but they state that the members never considered or 

acted upon these detailed matters of administration. 

It is believed that if the Legislature had intended that the Veterans’ Land Board should have to pass on each 

application and sale, it would have specifically required a 

formal resolution of such action, or that minutes be kept 

and such action to be entered in the minutes of the Board, in 

much the same manner as it did in the statute creating the 

School Land Board. This it did not do. 

Certainly the Legislature anticipated the great number ot Texas veterans who would want to participate in the 

Program. Practical considerations show that the Legislature 

could not have intended that the Board superintend every purchase and sale made under the Act. During the five and onehalf years of the operation of the Veterans’ Land Program, 

some 20;OO0 veterans’ applications have been filed. As there 

are four principal steps involved in the processing of each 

application, it is apparent that it would be impossible for 

the Board to have passed on these more than 80,000 separate 

items, particularly when the Legislature is presumed to have 

known that two members of the Board, the Governor and the 
Hon. J. Earl Rudder, page 7 (s-167) 

Attorney General 

cl 

each serve on many other State Boards and,,~ 

commissions in a dition to the heavy duties of their own 

elective offices. 

Thus it is recognized that the Legislature intended 

thatthe Board members be dependent upon employees of the 

General Land Office for matters relating to the Program. Such 

matters include surveying, appraisals of the property, title 

examination, all paper work, enforcing Board rules and regureceiving installment payments and, in fact, any and 

he necessary steps to process or check a veteran’s 

. 

As the Veterans’ Land Program was so tied to the 

General Land Office by the statute, it naturally follows that 

the Veterans’ Land Board should make the Commissioner of the 

General Land Office responsible for the administrative details of the Program. The statute does not prohibit this action and, in fact, Section 21 of the Veterans! Land Act authorizes the Board to make and promulgate such rules and regulations as may be necessary for the proper administration of 

the Act. The departmental construction placed on the itatute 

by the Board should be followed if it is reasonable. tanford 

v. Butla 142 Tex. 692, 181 S.W.2d 269 (1944). It is elementary in co&truing statutes that the courts must ascertain and 

g~ive effect to the legislative intent, and in determining the 

intent the courts will look to the entire Act and not to any 

one phrase, clause, or article. 

615, 51 S.W.2d 680 (1932). 

Popham v. Patterson 121 Tex. 

It is believed that the Departmental construction placed on Article 542lm by the Veterans’ 

Land Board and the General Land Office appears to be a reasonable construction of the Act. The prior departmental construction will be given great weight, particularly where the 

Legislature has met since the adoption of the departmental 

construction, and has not changed the statute in this regard. 

The Legislature could have specifically separated the activities of the General Land Office and the Veterans’ Land Board, 

or they could have provided separate facilities and employees 

for the Board, rather than making the functions of the Veterans* Land Program dependent upon the employees and facilities 

of the General Land Office. But, on the contrary, the Legislature has amended the Veterans’ Land Act three times since 

the adoption of this particular departmental construction and 

has not altered this procedure or construction. The law presumes that the Legislature knew of the construction placed on 

the Act by the executive department administering the Act and 

~further presumes that the Legislature intended, by reenac E ment 

of the Act, that the departmental construction should continue. 
Hon. J. Earl Rudder, page 8 (S-167) 

In addition, the Legislature, in 1951, passed 

a statute which specifically validated & actions theretofore taken by the Board. This had the effect of ratifying or validating the Board’s action in authorizing the 

General Land Commissioner to be responsible for the administration of the Veterans’ Land Program. Acts 1951, 52nd 

ch. 324, Sec. 25, p. 550; Dr Land & Cattle Co. 

@, 68 Tex. 526, 45 S.W. 864;$??ex.Jur. 461; 73 Cyi.S. 

. 

Particularly persuasive on the matter of legislative intent is the action of the recent 54th Legislature. Several amendments to the Veterans’ Land Act were 

offered in the Legislature which would have prohibited the 

Veterans Land Board from authorizing the Land Commissioner 

to administer the Program. The texts of these amendments 

were as follows: 

1. “No rule or regulation shall ever be 

promulgated which will result in the delegation of any responsibility or authority away 

from the members of the Board who are charged 

with the operation of the Board.” 

2. *‘The term ‘Board’ as used in this Act 

shall be construed for the purpose of this Act 

to mean all the members of the Veterans’ Land 

Board or a majority of the members thereof.” 

3* “No veterans’ land transaction shall 

ever be valid without receiving approval of 

all members of the Board with such approval 

vote by all members individually being shown 

in the Minutes of the Board as a permanent 

record of the Board.” 

4. “No checks shall ever be issued by the 

State Comptroller or any other authorized State 

agency in connection with or pertaining to Veterans’ Land Board transfers or purchases for 

veterans without the Comptroller or other authorized State agencies being furnished certified 

copies of the Minutes showing votes of the 

Board’s approval of such authority for expenditure in connection with veterans’ land transactions.” 
Ron. J. Earl Rudder, page 9 (s-167) 

The Le 

ts 

islature-refused to ado t these particular amendment s R.B. 341, Acts of the 5’ 6 th Leg., 19551, and thereby 

endorsed and gave its approval of the administrative procedure and departmental construction adopted by the Board. 

Certainly, this is as clear evidence as possible of the 

legislative intent relative to this matter. 

Finally, the action of the Veterans’ Land Board 

In authorizing the General Land Commissioner to be responsible for the operation and functioning of the administrative details of the Veterans’ Land Program is valid because 

those matters are purely ministerial and administrative, 

and may be properly delegated to him by the Board. While 

it is a well-settled rule of law that a State board or 

agency may not delegate any of its authority which involves 

the exercise of discretion, it is equally well-settled that 

those matters of a purely mechanical, ministerial, administrative, or executive nature, may be properly delegated by 

such board or agenoy. 

p. 370;aTh;oop, ’ 

Mechem, Public Offices and Officers 

Public Officers 5 540. McQuillin 

D 1 oroorationg’ Sec. 1014?’ p?t82* b7 C J S. 348; 

Attorney General’s OpiAions Nos. 015667, Vi974, G&36, and 

V-286. 

An act is none the less ministerial because the 

person performing it may have to satisfy himself that the 

state of facts exists under which it is his right and duty 

to perform the acts. This proposition may be illustrated 

by several cases. An officer authorized, upon certain conditions, to issue or revoke licenses to foreign insurance 

companies enabling them to transact business within a State, 

acts ministerially in issuing or revoking such a license, 

although he is required, in such case, to ascertain the existence of the facts upon which his authority is founded. 

State v. Doyle, 40 Wis. 174. The issuing and delivering of 

a patent to land, after the right thereto is complete, is a 

ministerial act. Simmons W ever 101 U.S. 260. County, 

officers, in bringing a sulk f% thi benefit of the county, 

and executing an injunction bond therein act ministerially. 

@&&&on C untv v Bovd, 64 MO. 179. i District Clerk 

acted minist~rially’in ap&oving a surety on a garnishment 

bond, even though he did exercise a degree of discretion 

when he ascertained the solvency of the suretyvbyFFquiry 

and examination of the county records. Be.nae rstec 

U., 47 S.W.2d 862 (1932). The act of a city in deleiating authority to a committee by city ordinance to lease an 

opera house was only ministerial, even though the committee 

could lease “on such terms and conditions as they may deem 

expedient”, as this language involves simply those ministerial acts necessary to perform the act of leasing. Citv of 
Hon. J. Earl Rudder, page 10 (s-167) 

BLddeford v. Yates, 72 Atl. 335. A city plaster inspector 

acted ministerially in passing on applications, even though 

he had to ascertain that the application conformedtto2~~ 

requirements of a city ordinance. Hatz v. Linauis 

N.W. 260 (1927). A city council delegated the powes to a 

committee to grant or revoke restaurant licen,ses, the test 

being, “public welfare” ; the court held that this was not 

the delegation of a discretionary power, but instead was 

only a ministerial act involving a determination of facts in 

accordance with which the administration of the ordinance 

would be administered. 

N.W.2d 168. 

Prawdzik v. Citv of Grand RaaiQ 21 

The issuance of a liquor license was ministirial 

c 

even though “a necessity may exist for the ascertainmen from personal knowledge, or by information, derived from 

other sources, of’ the state of facts on which &he perfgrmsnce 

of the act becomes a clear and spesific duty Land thid does 

not operate to convert it into a Ldiscretionary acti.” 

Grieder v. Tallv 77 -A.L.A. 422. The exercise of power by a 

board of arbitraiors to fix valuation of property was a tninisterial act. Allied Mortgage Co. v. Gilbert 9 S.E.2d 913. 

A decisi,on of inspectors or judges of an elec;ion, as tom the 

admission of a vote; or of county canvassers as to the result 

of an election; and the making of returns by election officers; are all ministerial acts. Peoale v. Van Slvck 

(N.Y.) 297; Peoole v. Pease, 27 N.Y. 45. Thus, whill ~h~“~~w 

is well-settled that a discretionary act may not be delegated, 

and a.ministerial act may be delegated, as a matter of fact 

it is often discovered that in applying these principles of 

law there are many acts held. to be ministerial which take in 

a certain amount of the element of judgment or discretion. 

Those matters of policy which require discretion 

and deliberation on the part of the Board members were not 

made the responsibility of the Commissioner, and the full 

Board still acts on these matters. Those matters on which, the 

Constitution and statute specifically require full Board action are also still acted upon by all. members of the Board. 

It is those administrative and ministerial details in carrying 

out the purpose of the Veterans’ Land Program, which do not 

require any exercise of discretion, deliberation, or judgment, 

that the Commissioner has been authorized to supervise. These 

acts include processing and checking the veteran’s application 

to purchase, appraisals, abstract of title, commitment papers, 

platting, ,and the contract of sale, to see that they meet the 

requirements of Article 5421~1 and the rules and regulations 

adopted by the Board’ as policy matters. There are other funct ions, such as the receipt of installment payments and the 

execution of contracts and deeds, but all of these activities 

are purely perfunctory and require no discretion or deliberation. 
Hon. J. Earl Rudder, page 11 (~4.67) 

We believe that the same rules will apply to the 

Act after the addition of the amendments as contained in H.B. 

341. As pointed. out above, the Legislature refused to adopt 

those, amendments which had as their purpose, restricting the 

Veterans’ Land Board and prohibiting a delegation of the authority for, administering the details of the Program. Gertainly this is an indication that the Legislature knew of the 

procedure adopted by the Board and that by refusing to adopt 

these ~amendments, the Legislature indicated that this procedure should cant inue. The Commissioner may be authorized to 

administer those matters in the amendments that set- fbrth additional administrative steps and details. In those instances where the amendments require a question of policy to 

be determined by the Board, the Commissioner may be authorized to administer that policy once it has bee~n determined by 

the Board. We can find no instance in H.B. 341 tha~t requires 

additional formal action by the Board in the everyday administration of the Veterans’ Land Program. We are therefore of 

the opinion that the Commissioner of the General Land Office 

may still be authorized to administer the Veterans’ Land 

Program. 

Perhaps a comparison between the, Veterans’~ Land 

Board and various other State agencies is in order to show ‘, 

how the Board d,iffers from those agencies of which the statutes require specific action of the members of the agency, 

and in those instances where the statutes do not require specific action by the members of such agencies. We have already 

pointed out the contrast between the Veterans’ Land Board and 

the School Land Board wherein the statute establishing the 

School Land Board requires specific action by the School Land 

Board in numerous, situations, while the Veterans’ Land Board 

is not .so required by statute. Asid.e from the distinguishing 

characteristics and standards between these two Boards as set 

down by the Legislature and pointed out above the very nature 

of the transactions involved clearly distingu i sh the functions 

and activities of these two Boards. The matters relating to 

the Veterans’ Land Program are such that dictate daily action 

and adhering to closing and other time schedules in order to 

furnish service to veteran applicants. On the other hand, 

matters concerning school lands are completely different in nature, and there is no necessity for daily actions of approval 

or disapproval. The sale of relatively small excess acreages, 

the purchase of unsurveyed school lands, the lease oft tidelands,,and the.consideration of pooling and unltization.agreements are matters that can be handled on a bimonthly docket. 

These matters are by their very nature such,that canbe taken 

up and considered in full Board action. 
Hon. J. Earl Rudder, page 12 (s-167) 

The oontrast between the functions of the Veterans’ 

Land Board and the Railroad Commission is broad and apparent. 

The most obvious distinction between the Railroad Commission 

and the Veterans’ Land Board is that the former is composed 

of members selected to perform full-time duties as Railroad 

Colhmissioners, while the members of the Veterans’ Land Board 

obviously cannot devote their full time to any single agency 

of which they may be ex-officio members to the exclusion of 

all other duties imposed upon them by the Constitution and 

statutes of the State of Texas. Perhaps less obvious but 

more basic, is the fact that these matters delegated $0 the 

Commissioner, wholly unlike the duties of the Railroad Comission; are such that they do not require the degree of discretion deliberation, or judgment exerted by the Railroad Commiss 1 oners. 

To illustrate this premise, it is important to note 

that the orders of the Railroad Commission are grounded upon 

many teahnical considerations which are brought to light by 

public hearings. Often the questions presented are susceptible to more than one solution; therefore, when an order of the 

Commission ‘is judicially reviewed, the test is not whether the 

Commission reached a proper fact conclusion on the basis of 

conflicting evidence and conflicting theories, but whether it 

acted arbitrarily and without regard to the facts. As the Cotnmission reaches its decisions on the basis of facts developed 

at its hearings, this action necessarily involves the exercise 

of deliberation and judgment. 

Because of its broad and elaborate powers over all 

aspects of transportation and oil and gas production, the Railroad Commission must of necessity, maintain a large staff. 

Its examiners hold literally thousands of public hearings each 

year in order to perform the myriad duties imposed upon the 

Commissioner. For example, in oil and gas matters the Comission must determine from evidence developed at public hearings 

the nature and extent of underground oil-bearing structures; 

reservoir pressures; the feasibility of secondary recovery proms,; repressuring problems j efficient drilling methods j market 

demand for oil and gas; questions of waste; the protection of 

correlative rights; and many additional questions. 

Its regulation of motor carriers requires the Railroad Commission to determine, among other things, whether the 

applicant for a permit to operate commercially over our highways 

is financially able to perform the service and is financially 

responsible; whether the proposed operation will promote the convenience of the public and whether it is necessary; whether the 

applicant’s equipment conforms to established safety standards; 
Hon. J. Earl Rudder, p~age J.3 (s-167) 

and whether the highways over which the applicant seeks to 

operate will be unduly congested or damaged by the proposed 

service. 

Obviously, these are questions requiring the expert 

appraisal of a specialized body and each commissioner has the 

benefit of the expert counsel and judgment of his colleagues. 

Each commissioner might rationally entertain a different view 

as to what decision should be made in a particular case because of his particular technical background as a lawyer, petroleum engineer, etc. 

Thus it can be seen that the decisions and rulings 

of the Railroad Commission are such on which there can exist 

differences of opinion based on different interpretations of 

law and fact --such decisions and rulings which require the 

exercise of discretion and deliberation. 

Such is not the case with the matters to be considered under the Veterans* Land ,Act. In the first place, any 

Texas veteran is entitled to the benefits of the Act. There 

is no discretion to refuse an application so long as the applicant has complied with the provisions of the Veterans’ Land 

Act and the rules and regulations of the Board. Next, where 

an appraisal is made of the land sought to be purchased, such 

appraisal is made by an employee of the Land Commissioner. 

The members of the Board cannot make a personal inspection of 

each tract of land requiring appraisal 

fore, I 

and they must, thereaccept the judgment of the appra ser, an employee of the 

General Laud Office, as to the value of the land. The Board 

must also accept as correct the title opinions of the lawyers 

employed by the Commissioner to examine titles to the land 

purchased by the State. The members of the Board could cot 

possibly examine all the abstracts to determine if the employees of the General Laud Office had reached a sound conclusion 

as to the status of these titles. Again this is a matter 

over which the Board could exercise no~,d I scretion. They must 

accept the judgment of the examining attorney because that is 

the only evidence available. 

Following examination of title, the attorney has the 

field notes and the deed checked by Land Office draftsmen, and 

refers all papers to the Executive Secretary who, in conjunction with the Land Commissioner, reviews the file and obtains 

the warrant from the State Comptroller. The warrant and deed 

to the State are sent to the attorney who examined the title 

and he closes the sale and records the deed. The remaining 

functions are purely perfunctory--the receipt of installment 

payments and the executi~on of contracts and deeds to the veteran 
Hon. J. Earl Rudder, page 14 (S-167) 

by the Chairman of the Board, the Land Commissioner. The 

performance of these functions likewise requires no discre- 

‘tion or deliberation on the part of the Board members. 

With other State boards and agencies it is a common 

practice for their activities to be restricted to policymaking, while a single executive administers the affairs of 

the Board. 

suffice: 

Examples could be multiplied, but a few should 

The State Board of Public Welfare spends $125 million a year --more than is contained in the entire Veterans’ 

Land Fund--and the actual spending of the money is an administrative matter entirely in the hands of the Executive Director 

and his staff. 

The nine-man State Game and Fish Commission decides 

matters of general policy and the aministration of the Department , supervision of Game Wardens, and the expenditure of hundreds of thousands of dollars yearly is in the hands of the 

Executive Secretary. 

The administration and enforcement. of State liquor 

laws is handled by an Administrator and not by the State Liquor Control Board. 

The Texas Aeronautics Commission is a policy-making 

body, but its program is administered by its Director. 

There was a day when the three-man Public Safety 

Commission passed on every expenditure made by the Department. 

The Commission now establishes general policies with the administration of the State’s far-flung police system and the 

expenditure of its funds in the hands of the Director of the 

Department of Public Safety. 

The Hoover Commission’s Task Force on the regulatory 

agencies stressed the need for further delegation ,of authority. 

They recommended that each commission explore more fully the 

possibility of further delegation to its staff of authority to 

handle routine and preliminary matters which should not require 

the specific attention of the Commission as a whole. 

In the final analysis, the administration of government is based on trust. It has to be. There are physical limitations on what any one man can do; that’s why staffs of employees are provided by the Legislature to handle administrative 

details. In the case of the Veterans’ Land Board, the Land Commissioner is more than an employee. He is a State official 
. 

Hon. J. Earl Rudder, page 15 (s-167) 

elected by the people, and a member and the Chairman of the 

Veterans’ Land Board. He is the man authorized by statute to 

sign the deeds, to hire and to provide the employees, and to 

keep all Board records in his office. To him the Veterans’ 

Land Board has delegated the authority to administer the Program. It is our opinion that such action is valid, because 

such was the intent of the Legislature originally; that the 

Legislature subsequently ratified and approved this action; 

end that those functions with which he is responsible are 

purely administrative and ministerial, and come within the 

general rule that ministerial acts of a State board or agency 

may be delegated to another. 

Further, we are of the opinion that the amendments 

to the Veterans’ Land Act as contained in H.B. 341 do not 

make it necessary to change this practice and the Veterans’ 

Land Board may continue to authorize the Commissioner of the 

General Land Office to administer the Program. 

The amendments to Article 5421m the Veterans’ 

Land Act, passed by the 54th Legislature, do not 

make it necessary to change the established practice of administering the Veterans’ Land Program, 

and the Commissioner of the General Land Office may 

still be vested with the authority for administering 

the Veterans’ Land Program. 

PPROVED : 

kiTi, 

Yours very truly, 

JOHN BEN SHEPPERD 

Attorqey General r\ 

‘b&l 8. Bhrney 

Special Assistant 

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